Basu: Sex offender commitment law needs review

Nov. 8, 2013
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When he was 19 and in college in Indiana, Galen Baughman was enticed by an undercover New York investigator into sending online pornography to a child. The agent, assuming the identity of a 14-year-old friend of Baughman’s in New York, pretended to come out to Baughman, who is gay. He asked Baughman to send him pornography of people who appeared of high school age. When Baughman resisted, the “friend” threatened never to speak to him again.

“I’d been a 14-year kid who felt ostracized and had nobody to talk to,” Baughman explained. “I was doing what I thought was best for my friend.”

That set in motion a process that isn’t over yet, and Baughman is now 30. He came to Des Moines recently to speak to the local chapter of a national group he’s with, Citizens United for the Rehabilitation of Errants (CURE).

Its perspective on the legal overkill against some sex offenders may force even staunch victim advocates to reconsider some assumptions.

Baughman was arrested, his laptop was seized and authorities found messages he had exchanged a year earlier with another 14-year-old friend from Virginia regarding an uncompleted sexual encounter they’d had. Sexual involvement with a minor is a serious matter and Baughman, though a teen himself, was legally an adult. So he entered a plea bargain to “promoting the sexual performance of a child, carnal knowledge of a minor and aggravated sexual battery,” for which he served nine years in prison.

Before his release date, Virginia authorities decided, without an expert evaluation (Baughman refused one without a lawyer), that he was too dangerous and should be civilly committed to a special unit for sexually violent predators. This happened under Virginia’s attorney general, the hard-line Ken Cuccinelli, who this week lost the governor’s race to Terry McAuliffe. Baughman’s doctor did not consider him likely to commit sexual violence, but his views were not considered.

Baughman spent two and a half years in civil commitment before becoming the only person in Virginia to win his civil commitment jury trial. He’s still on probation.

Twenty-two states including Iowa have laws under which people convicted of sex offenses can be civilly committed indefinitely after completing their prison sentences. “Most do not escape this largely invisible American gulag,” wrote James Ridgeway in a Sept. 26 Guardian article about Baughman.

In 1993, the Register printed a piece by lawyer Andrew Vachss that challenged presumptions about the rights of offenders to repay their debt to society and be released. He said there were chronic sexual predators, sociopaths, who had incomplete or perverted childhoods, lack empathy and “can’t step back to the other side.”

“And they don’t want to,” he wrote. “ If we don’t kill or release them, we have but one choice: Call them monsters and isolate them.”

Iowa did. It passed the Sexually Violent Predators Act and created the 100-bed civil commitment unit for sexual offenders in Cherokee in 1998. County attorneys or the state attorney general can petition to commit a sex offender at high risk of reoffending, after his sentence.

The U.S. Supreme Court has ruled civil commitment is not unconstitutional if it offers treatment. Iowa’s unit does, but that raises the question: If these are sexually violent predators who won’t get better, what’s the point?

Only two offenders out of the 123 men committed to the Iowa facility since it opened have been discharged after completing five required steps culminating in a court ruling to free them. Eleven were discharged through court actions initiated another way, three were moved to other services and seven have died there.

Sixteen new people were admitted last year.

Even the term “sexually violent predator” is problematic, argues Baughman, because it’s not a medical designation and the process leaves too much discretion to the state’s therapist.

At least one person has been in Iowa’s unit since age 14.

Elizabeth Barnhill, executive director of the Iowa Coalition Against Sexual Assault, serves on a committee reviewing possible commitments. She said only those who have repeatedly offended despite an opportunity for rehabilitation are considered. Those are a small minority, extremely damaged and violent, she said. She believes layers of screening, a probable-cause hearing and a civil trial prevent the wrong people from being committed. But she has reservations about civil commitment. Iowa spends $8.5 million a year on the Cherokee unit ($79,211 per person), which Barnhill thinks might be better spent treating sexual assault survivors. She wonders if longer prison terms for the most violent wouldn’t be better.

Rape and child sex abuse are devastating crimes from which some people don’t recover. Offenders like Jerry Sandusky should never be around children. But others who get swept up under the rubric of sexual predators are far from that.

The state’s actions have far-reaching consequences for public safety and the civil rights of an especially reviled group. Even as we try to build safer communities, we can’t lump every offender into the same pot, and must let those who have paid their price and pose minimal risk move on.